DEPARTMENT OF THE NAVY, PETITIONER V. THOMAS M. EGAN No. 86-1552 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Federal Circuit Brief for the Petitioner TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Question presented Statement Summary of argument Argument: The Merit Systems Protection Board is not authorized to review the merits of the denial or revocation of a security clearance in the course of reviewing an employee's removal for failure to maintain a clearance A. The determination whether to grant a security clearance is a sensitive and inherently discretionary determination committed by law to Executive Branch agencies B. The text and history of the Civil Service Reform Act, the "nature of the administrative action involved" in security clearance determinations, and the nature of the statutory procedures for review of adverse actions demonstrate that Congress could not have intended to subject security clearance determinations to MSPB review 1. The CSRA does not by its terms provide for MSPB review of security clearance determinations 2. The history of the CSRA demonstrates that Congress did not intend to give the MSPB jurisdiction to review the merits of security clearance determinations 3. The "nature of the administrative action involved" further indicates that Congress did not intend the MSPB to review security clearance determinations 4. The standard of review chosen by Congress for MSPB review of adverse personnel actions could not have been intended to apply to security clearance determinations 5. The process of MSPB review of security clearance determinations would itself threaten national security C. The availability of summary removal under 5 U.S.C. 7532 provides no support for MSPB review of security clearance determinations under Sections 7512 and 7513 Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-42a) is reported at 802 F.2d 1563. The opinion of the Merit Systems Protection Board (Pet. App. 43a-60a) is reported at 28 M.S.P.R. 509. The earlier opinion of a presiding official of the MSPB (Pet. App. 61a-68a) is unreported. JURISDICTION The judgment of the court of appeals (Pet. App. 69a) was entered on October 1, 1986. A petition for rehearing and a suggestion for rehearing en banc were denied on November 26, 1986 (Pet. App. 71a), and December 8, 1986 (Pet. App. 70a), respectively. On February 18, 1987, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including March 26, 1987. The petition was filed on that date and was granted on May 26, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The pertinent statutory provisions are set forth in Pet. App. 72a-75a and in Respondent's Brief in Opposition Appendix 1a-6a. QUESTION PRESENTED Whether, in the course of reviewing the removal of an employee for failure to maintain a required security clearance, the Merit Systems Protection Board is authorized by statute to review the substance of the underlying decision to deny or revoke the security clearance. STATEMENT 1. In November 1981, respondent Thomas Egan was hired as a laborer at the Trident Naval Refit Facility in Bremerton, Washington (Pet. App. 1a-2a). The mission of the Refit Facility is to provide "quick turnaround repair, replenishment and systems checkout of the TRIDENT submarine over its extended operating cycle" (C.A. App. 3). /1/ The Trident submarine is nuclear powered and carries nuclear weapons. It is the most sophisticated and sensitive weapon in the Navy's arsenal and plays a crucial part in our nation's defense system. See generally Concerned About Trident v. Schlesinger, 400 F. Supp. 454, 462-466 (D.D.C. 1975). As a consequence, all positions at the Refit Facility are classified as sensitive, requiring incumbents of such positions to "qualify for and maintain eligibility for a security clearance as a condition of employment" (C.A. App. 35). Respondent was hired as a civilian employee of the Navy, subject to the provisions of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. 1201 et seq. His position entailed "access to classified information regarding arrival/departure of submarines and access to classified/restricted areas or equipment aboard the submarines" (C.A. App. 44). Without a security clearance, respondent could not do the job. His employment was therefore expressly conditioned on his subsequently receiving such a clearance (Pet. App. 1a-2a). Pending the outcome of his security investigation, respondent performed strictly limited duties and was not permitted to go aboard the submarines (C.A. App. 44). On February 16, 1983, the Director of Naval Civilian Personnel Command issued a letter of intent to deny respondent a security clearance based upon various criminal records in California and Washington reflecting convictions for assault and for being a felon in possession of a gun, and based upon his failure to disclose on his application for federal employment two earlier convictions for carrying a loaded firearm (C.A. App. 36-39). The Navy also relied upon respondent's own statements that he had had drinking problems in the past and that he had served the final twenty-eight days of one sentence in an alcohol rehabilitation program (id. at 38). In accordance with Navy regulations governing security clearances, /2/ respondent was informed that he had a right to respond to the proposed denial and to "submit any statements, documents, or other materials to explain, mitigate or refute the information" contained in the letter (C.A. App. 38). On May 6, 1983, respondent answered the Navy's letter of intent, asserting that he had paid his debt to society for his convictions, that he had not listed convictions older than seven years because he did not interpret the employment form as requiring that information, and that he believed that alcohol had not been a problem for the three years preceding the clearance determination (id. at 40-42). He also provided favorable material from supervisors concerning his background and character. The Director of Naval Civilian Personnel Command, after considering this response, concluded that the information provided did "not sufficiently explain, mitigate or refute" the reasons on which the intended denial was based (C.A. App. 43). Accordingly, the Director affirmed the decision to deny respondent a security clearance. Respondent appealed this decision to the Personnel Security Appeals Board (PSAB) on June 24, 1983. /3/ The PSAB affirmed the denial of the security clearance on September 1, 1983. Without a security clearance, respondent was not eligible for the position for which he had been hired. Reassignment to a nonsensitive position at the Facility was not possible because none existed. And "(t)here (were) no methods of restructuring the job environment, providing an escort, or sanitizing work areas which (respondent's) position must access." C.A. App. 48. Accordingly, on June 17, 1983, the Navy issued a notice of proposed removal (id. at 44-46). Respondent was informed that he was entitled to respond to the notice, to be represented by counsel or a union representative, and to "review the material relied on to support this proposed removal" (id. at 45-46). He was placed on administrative leave pending a final decision. Respondent did not reply to the notice of proposed removal, and, on July 15, 1983, he was informed that the removal would become effective on July 22, 1983 (id. at 47-48). 2. Respondent sought review of his removal by the Merit Systems Protection Board (MSPB or Board) pursuant to 5 U.S.C. 7513(d). Under Section 7513, an agency may remove an employee for "such cause as will promote the efficiency of the service." The statute provides employees with a number of procedural protections, including notice, an opportunity to respond and be represented by counsel, and a written decision. The affected employee -- unless a nonveteran in the excepted service -- may also appeal the agency's decision to the MSPB, which will sustain the action if it is "supported by a preponderance of the evidence" (5 U.S.C. 7701 (c)(1)(B)). /4/ The "cause" for respondent's removal was his "failure to meet the requirements of (his) position due to denial of (his) security clearance" (C.A. App. 44). The government argued before the MSPB that its review was limited to determining whether the proper removal procedures had been followed and whether a security clearance was in fact a requirement of respondent's position. The government contended that the MSPB did not have authority to judge the merits of the underlying security clearance determination. a. The MSPB presiding official ruled that the Board did have authority to review the merits of the security clearance determination (Pet. App. 62a). She further ruled that, in order to facilitate such review, the agency must specify the precise criteria used in its security clearance decisions and show that those criteria are rationally related to national security concerns (id. at 62a-63a). The presiding official stated that the agency must then show, by a preponderance of the evidence, first, that the employee's acts precipitating the revocation or denial of his security clearance actually occurred and, second, that the "employee's alleged misconduct has an actual or potentially (sic) detrimental effect on national security interests" (id. at 63a). The presiding official held that "the ultimate burden is upon the agency to persuade the Board of the appropriateness of its decision to deny or revoke an employee's security clearance" (id. at 64a). The presiding official concluded that it was not possible to determine whether the Navy's determination to deny respondent's security clearance was justified because the Navy did not submit a list of the criteria it used in making clearance determinations and because it did not present evidence that it had "conscientiously weighed" the circumstances surrounding respondent's misconduct and "reasonably balanced" the misconduct against national security concerns (Pet. App. 65a). Accordingly, the presiding official concluded that the Navy had "failed to show that it reached a reasonable and warranted decision concerning the propriety of the revocation of (respondent's) security clearance" (id. at 66a). The presiding official therefore ordered respondent reinstated (ibid.). b. The Navy petitioned the full Board for review of the presiding official's decision. The MSPB had before it numerous petitions for review raising similar issues of law and treated this case as the lead case. The Board formally invited and received briefs from interested agencies, employee organizations, and others concerning the proper scope of its review of security clearance determinations, the appropriate remedy if review is available and the determination is adverse to the agency, and whether 5 U.S.C. 7532 (see n.4, supra) is the exclusive authority for removals based upon national security concerns (49 Fed. Reg. 48623-48624 (1984) and 50 Fed. Reg. 2355 (1985)). In a unanimous decision the MSPB noted, as an initial matter, that there is no clear authority on the question of its jurisdiction to review security clearance determinations. It said the statutory provisions granting the Board jurisdiction to review adverse personnel actions "do not specifically address the extent of the Board's review of the underlying determination" (Pet. App. 47a), and the legislative history of the CSRA "also does not address the extent of the authority Congress intended the Board to exercise in reviewing revocations or denials of security clearances which result in Chapter 75 actions" (id. at 47a-48a). The Board added that there is no binding legal precedent on point (id. at 48a-49a). /5/ The Board noted, however, that the MSPB is "purely a creation of statute" and therefore has only those powers granted to it by statute (Pet. App. 54a). Traditionally, the Board said, it has declined to exercise jurisdiction over matters committed to the discretion of other agencies which are not expressly included within the Board's review authority. For example, the MSPB has always refrained from exercising jurisdiction over "matters traditionally within military purview" which might form the basis of an adverse personnel decision (id. at 50a). Similarly, the Board has declined to re-examine other decisions underlying adverse personnel actions, such as criminal convictions or bar decertifications, where those decisions "are committed to appropriate procedures within the respective entities and, additionally involve determinations wherein the Board lacks a specific grant of jurisdiction" (id. at 52a). The MSPB noted that security clearance determinations are "committed by law exclusively to the employing agencies within the executive branch of the government" (Pet. App. 50a, citing Exec. Order No. 10,450, 3 C.F.R. 936 (1949-1953 Comp.), reprinted as amended in 5 U.S.C. 7311 note; Pet. App. 75a-86a). The Board added that "an adverse action based on the loss of a security clearance is a bifurcated proceeding in which the Board's explicit authority extends only to the ultimate adverse action" (Pet. App. 52a). The Board said that if it reviewed security clearance determinations the Board would "inevitably be faced with agency exposition of highly sensitive materials and Board determinations on matters of national security" (id. at 53a). Given the "degree of sensitivity" attaching to clearance determinations and the fact that such determinations are expressly committed to agency discretion, the Board concluded that it "has no authority to review the agency's stated reasons for the security clearance determination" in the course of reviewing an otherwise reviewable adverse personnel action resulting in whole or in part from the clearance determination (Pet. App. 54a). "However," the Board added, "(we) will review the procedures utilized by the agency to ensure that the agency afforded the (employee) procedural due process" (ibid.). Specifically, the Board held that where an adverse personnel action is based upon the denial or revocation of a security clearance, the Board's review would be limited to determining that the position required a security clearance, that the employee did not qualify for or maintain eligibility for that clearance, and that the agency had afforded the employee procedural due process (which the Board held to consist, at a minimum, of notice, a statement of reasons for a negative decision, and an opportunity to respond) before taking adverse action (ibid.). Applying these requirements to respondent's case, the Board sustained the Navy's action in removing him from employment at the Refit Facility (id. at 58a-60a). /6/ 3. Respondent appealed to the United States Court of Appeals for the Federal Circuit pursuant to 5 U.S.C. 7703. By a divided vote, the court reversed the Board's decision that it has no authority to review the merits of security clearance determinations underlying removals and other adverse personnel actions (Pet. App. 1a-42a). a. The court of appeals agreed with the Board that 5 U.S.C. 7532 is not the sole authority for removals based upon national security concerns (Pet. App. 11a-12a). It held, however, that when an agency elects to proceed with a removal without invoking and following Section 7532, its action "carries Board review" (Pet. App. 12a), including review of the merits of the underlying agency determination to deny or revoke a security clearance (id. at 12a-22a). The court stressed that 5 U.S.C. 7701, which prescribes procedures governing Board review of removals and other adverse personnel actions, does not expressly exclude or preclude review of underlying security clearance determinations. Therefore, the court concluded, there is a "strong" presumption in favor of such review (Pet. App. 13a (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967)). "In sum," the court said, "the Board is required to review the agency action taken against (respondent) with the same full process and standards and scope of review, established by law and precedent, as any other adverse action taken under Section 7512" (Pet. App. 19a). The court concluded that the fact that security clearance determinations are "committed to the sound discretion of the agency" (Pet. App. 24a) does not make them unreviewable. It stated that since the Navy's regulations specify the criteria used in making clearance determinations, the Board is capable of ensuring that those criteria are met and that a nexus exists between the criteria and the employer's need to safeguard classified information (id. at 18a-19a, 24a). The court then remanded to the Board for such review, stating that the question of an appropriate remedy for respondent, should the Board rule that a security clearance was improperly denied, was not yet ripe for the court's review (id. at 22a-25a). b. Chief Judge Markey dissented (Pet. App. 26a-42a). He noted that respondent had been given all the procedural protections to which he was entitled (id. at 30a-32a) and that respondent did not contest any of the facts upon which the Navy had based its determination but simply disagreed with the Navy's judgment that he should not be given a security clearance (id. at 26a-28a). Chief Judge Markey characterized the court's decision as an instruction to the MSPB to second-guess the wisdom of a security clearance determination, effectively transferring a discretionary decision vested in executive agencies with responsibility and qualifications to protect classified information to a body that has neither the responsibility nor the expertise to make such decisions (id. at 32a-33a). He suggested that, by severely diluting the ability of responsible agency heads to protect national security information, the panel's decision raised separation of powers concerns as well (id. at 37a-39a). He also noted that the Board would be unable to provide an appropriate remedy should it disagree with the merits of a security clearance determination (id. at 40a-42a). SUMMARY OF ARGUMENT The MSPB ruled, after full and careful consideration, that it does not have authority to review the merits of an agency's determination not to issue a security clearance. The Federal Circuit reversed and directed the MSPB to "review the agency action * * * with the same full process and standards and scope of review, established by law and precedent, as any other adverse action taken under Section 7512" (Pet. App. 19a); these standards include 5 U.S.C. 7701(c)(1)(A), which provides that the MSPB may sustain the agency action only if it is supported by a "preponderance of the evidence" presented to the agency at a hearing. The court of appeals' decision subjects every denial of a security clearance to a civilian government employee to de novo review whenever the denial leads to a suspension, removal, or other "adverse action" reviewable by the MSPB under Section 7513(d). We believe Congress cannot have intended to confer such power on the MSPB and that the decision below is therefore plainly wrong. The President has the constitutional responsibility to protect information whose improper use or disclosure could affect national security. He has exercised this authority by directing Executive Branch agencies to classify information (Exec. Order No. 12,356) and to grant access to sensitive information only to those individuals whose access is "clearly consistent with the interests of the national security" (Exec. Order No. 10,450, Sections 2, 7). The requirement of an affirmative determination meeting this stringent standard is appropriate: it is better that nine persons who might never compromise sensitive information be denied access, than that access be granted to one person who does. The denial of a security clearance is not a judgment on an individual's character or past conduct. It is based on an inability to predict -- under all the circumstances, including those beyond his control -- that the individual can and will sufficiently safeguard sensitive information. And although, because there are no nonsensitive positions at the Bremerton Refit Facility, the denial of a clearance led to respondent's removal, removal is by no means an automatic or ordinary consequence. The determination whether to grant a security clearance is inherently discretionary. It can be made only by personnel who are familiar with the information to which a particular position grants access, its degree of sensitivity, the reasons for and sources of hostile interest in it, and the ways in which it could be compromised; with the range of factors that may lead a particular individual to act in a way that will compromise the particular information; and with the acceptable margin for error in a given case. An agency's inability to make the necessary affirmative prediction in a given case is inherently not subject to meaningful outside review, as the attempt at second-guessing by the MSPB presiding official in this case amply illustrates. The text and history of Section 7513 and related provisions of the CSRA demonstrate that Congress did not intend to give the MSPB power to review the merits of security clearance determinations. The MSPB has the power to review "adverse actions," but the denial of a security clearance is not an "adverse action"; accordingly, although the MSPB has power to review the removal (including whether the position requires a security clearance, whether the required clearance was denied in accordance with agency procedures, and whether transfer to a nonsensitive position was feasible) the statute does not authorize the MSPB to review the merits of the clearance denial. Moreover, we know of no record of such review by the MSPB's predecessor, the Civil Service Commission, and the legislative history of the CSRA negates any possibility that Congress intended to give the MSPB broader jurisdiction in this respect. Finally, other CSRA provisions, including the preponderance of the evidence standard applicable to MSPB review of adverse actions and the availability (in some circumstances) of arbitration at the request of the employee, are so obviously incompatible with review of the merits of the denial of a security clearance as to demonstrate clearly that Congress could not have intended such review. Section 7532 authorizes "the head of an agency" to suspend an employee summarily and without pay when he considers such action "necessary in the interfests of national security," and to remove a suspended employee when he determines that removal is "necessary or advisable in the interests of national security." The court of appeals found the availability of the Section 7532 procedure a "compelling" (Pet. App. 18a) argument in favor of MSPB review in any case where the Section 7532 procedure is not followed. That is a non sequitur. Section 7532 is a drastic remedy for both the affected employee and the head of the agency, and its legislative history indicates that it was to be used only in exceptional cases. The employee may be suspended summarily, without process and without pay, and may be removed "after such investigation and review as (the agency head) considers necessary." While a post-suspension intra-agency hearing, of unspecified scope, is provided for, neither the suspension nor the removal is subject to any outside review. And an employee removed under Section 7532 is not eligible for any other position in the agency and may not be appointed to any position elsewhere in the government without consultation with OPM. On the other hand, from the standpoint of the head of the agency, Section 7532 requires him to act personally, and it requires affirmative findings that suspension is "necessary" and then that removal is "necessary or advisable" in the interests of national security. To the extent that the existence of Section 7532 has any bearing on whether Congress intended the MSPB to review an underlying security clearance determination in a Section 7513 case, its significance is to demonstrate Congress's clear awareness that determinations based on national security considerations are not appropriate for outside review. ARGUMENT THE MERIT SYSTEMS PROTECTION BOARD IS NOT AUTHORIZED TO REVIEW THE MERITS OF THE DENIAL OR REVOCATION OF A SECURITY CLEARANCE IN THE COURSE OF REVIEWING AN EMPLOYEE'S REMOVAL FOR FAILURE TO MAINTAIN A CLEARANCE The Civil Service Reform Act of 1978, 5 U.S.C. 7512 and 7513, provides for Merit Systems Protection Board review of removals for cause and other "adverse actions" affecting civilian employees of the government. Denial of a security clearance is not an "adverse action," and the CSRA does not by its terms grant the MSPB authority to review the merits of a security clearance denial in the course of reviewing an adverse action resulting from that denial. The court of appeals nevertheless ruled that "(t)he absence of any statutory provision precluding appellate review of security clearance denials in Section 7512 removals creates a strong presumption in favor of appellate review." Pet. App. 13a (emphasis added) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967)). This was error. The determination whether it would be "clearly consistent with the interests of the national security" (Exec. Order No. 10,450, Sections 2, 7, 3 C.F.R. 936, 938 (1949-1953 Comp.)) to grant a security clearance to a particular employee is a sensitive and inherently discretionary determination, committed by law to the appropriate Executive Branch agency, and it should be presumed not to be subject to outside review unless there is the clearest indication of congressional intent to do so. But there is no such indication. In fact, the exact opposite is the case: clearance determinations were not subject to outside review prior to the adoption of the CSRA; the text and history of the CSRA offer no evidence that Congress intended to change this; and the statutory procedures for review of adverse actions are so plainly inappropriate to review of security clearance determinations that Congress could not have intended the MSPB to engage in such review. A. The Determination Whether To Grant A Security Clearance Is A Sensitive And Inherently Discretionary Determination Committed By Law To Executive Branch Agencies The President has the constitutional responsibility to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give him access to such information. This authority of the President exists quite apart from any explicit congressional grant. It flows directly from the constitutional vesting of the "executive Power" in the President and the President's powers as "Commander in Chief of the Army and Navy." U.S. Const. Art. II. See Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961); United States v. Marchetti, 466 F.2d 1309, 1315 (4th Cir.), cert. denied, 409 U.S. 1063 (1972). As Chief Judge Markey noted in his dissent in this case (Pet. App. 37a), "(t)he protection of classified information is an executive responsibility flowing from the President's constitutional mandate to provide for the national defense." This Court has, on numerous occasions, recognized the government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business (Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (per curiam)). See, e.g., United States v. Robel, 389 U.S. 258, 267 (1967); United States v. Reynolds, 345 U.S. 1, 10 (1953); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); Totten v. United States, 92 U.S. 105, 106 (1875). The authority and the solemn obligation to protect such information fall on the President as head of the Executive Branch and Commander in Chief. As explained by Justice Stewart in his concurring opinion in New York Times Co. v. United States, 403 U.S. 713, 729-730 (1971): (I)t is the constitutional duty of the Executive -- as a matter of sovereign prerogative and not as a matter of law as the courts know law -- through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense. Since World War I, the Executive Branch has engaged in systematic efforts to protect national security information by means of a classification system, requiring documents to be labelled -- and access to them restricted -- according to their sensitivity (see generally Developments in the Law -- The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1193-1194 (1972)). Originally, these efforts were limited to the military. But after World War II numerous civilian agencies including the CIA, the NSA, and the Atomic Energy Commission were entrusted with gathering, protecting, or creating information bearing on our national security. In a series of executive orders, therefore, Presidents have sought to protect sensitive information and ensure its proper classification throughout the Executive Branch by delegating this responsibility to the heads of those agencies whose functions involve the generation or use of sensitive information. See Exec. Order No. 10,290, 3 C.F.R. 790 (1949-1953 Comp.); Exec. Order No. 10,501, 3 C.F.R. 979 (1949-1953 Comp.); Exec. Order No. 11,652, 3 C.F.R. 154 (1972 Comp.); Exec. Order No. 12,065, 3 C.F.R. 190 (1979); Exec. Order No. 12,356, Section 4.1(a), 3 C.F.R. 166 (1982 Comp.). /7/ The point of a classification system is to limit access to sensitive documents and installations to those individuals who have been granted security clearances for that level of classification and who need the access in order to perform their duties. Exec. Order No. 12,356, Section 4.1(a), 3 C.F.R. 166 (1982 Comp.). Accordingly, the President has required the heads of all executive agencies to establish personnel security programs to protect national security information. Exec. Order No. 10,450, Section 2, 3 C.F.R. 936 (1949-1953 Comp.). Pursuant to this directive, every department and agency of the Government classifies its jobs in three categories: critical sensitive, noncritical sensitive, and nonsensitive. Different types and levels of clearance are required depending upon the position sought. All government appointments are expressly made subject to a background investigation, but the scope of that investigation varies "according to the degree of adverse effect the occupant of the position sought to be filled could bring about, by virtue of the nature of the position, on the national security" (Exec. Order No. 10,450, Section 3, 3 C.F.R. 937 (1949-1953 Comp.)). No individual has a "right" to a security clearance. Under long established principles, the grant of a security clearance requires an affirmative act of discretion on the part of the granting official based on a high degree of confidence in the grantee. Doubts are necessarily resolved against the individual seeking access to our nation's secrets: it is better that nine persons who might never compromise classified information be denied access to it, than that access be granted to one person who does. The general standard therefore is that a clearance may be granted only when "clearly consistent with the interests of the national security." See, e.g., Exec. Order No. 10,450, Sections 2, 7, 3 C.F.R. 936, 938 (1949-1953 Comp.); OPNAVINST 5510.1F, para. 16-100(1); 10 C.F.R. 710.10(a) (Department of Energy regulation); 32 C.F.R. 156.3(a) (Department of Defense regulation); Department of Defense Regulation 5200.2-R, para. 6-100(a) (Dec. 1979). A clearance determination, it should be stressed, is not a judgment of an individual or his past conduct. It is an attempt to predict his future behavior, to assess whether he might, through disloyalty or venality or carelessness or under the compulsion of circumstances beyond his control, compromise sensitive information. The prediction may be based upon the individual's past or present conduct; but it may also be based upon concerns unrelated to an individual's conduct, such as whether he has close relatives residing in a country that is hostile to the United States (see, e.g., OPNAVINST 5510.1F, para. 16-102(2)(l)). As then Judge Scalia explained in Molerio v. FBI, 749 F.2d 815, 824 (D.C. Cir. 1984): To receive a "top secret" clearance is assuredly a badge of loyalty; but to be denied it on unspecified grounds in no way implies disloyalty or any other repugnant characteristic -- as is shown by the evidence in this case that the mere fact that one has relatives in a hostile country may be considered a basis for denial. It is possible to state both general considerations (e.g., "loyalty, reliability, and trustworthiness" (see OPNAVINST 5510.1F, para. 16-100(1)(b)) in which the decision is based and some specific facts that are pertinent (e.g., "crimimal or dishonest conduct," "deception or fraud in applying for enlistment or appointment," "use of intoxicating beverages to excess," other "conduct that indicates poor judgment" (see OPNAVINST 5510.1F, para. 16-102)). But it is often not possible to identify, much less quantify, all of the factors that make it impossible to reach the necessary affirmative conclusion in a particular case. The attempt to divine not only the individual's future actions, but those of outside, unknown influences renders the "grant or denial of security clearances * * * an inexact science at best." Adams v. Laird, 420 F.2d 230, 239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). Such predictive judgments must be made by those with the necessary expertise in protecting classified information. For "reasons * * * too obvious to call for enlarged discussion" (CIA v. Sims, 471 U.S. 159, 170 (1985)), the protection of classified information must be committed to the broad discretion of the agencies responsible for such information, and this must include broad discretion to judge who may have access to it. It is not reasonably possible for an outside, nonexpert body to review the substance of such a judgment and decide whether, under the "clearly consistent" standard, the agency should have been able to make the necessary affirmative prediction with the necessary confidence. No such outside body can know or evaluate all of the relevant facts and circumstances, including the nature of the information likely to be available to the occupant of a particular position, the ways in which it could be compromised,the unauthorized or hostile persons who may be interested in obtaining it, the damage that could result if it were disclosed, and the factors that may lead a particular individual to compromise it. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk that confidential information will be compromised. Accordingly, this Court has acknowledged that with respect to employees in sensitive positions "there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information." Cole v. Young, 351 U.S. 536, 546 (1956) (emphasis added) (dictum). /8/ See also Adams v. Laird, 420 F.2d at 239 (the standard to be observed in security clearance determinations "is for the President to make in the discharge of his executive functions"); Greene v. McElroy, 254 F.2d 944, 949 (D.C. Cir. 1958), rev'd on other grounds, 360 U.S. 474 (1959) ("wide latitude in designating persons qualified for access to classified defense information" is a "necessary adjunct to the power and duty to defend the security of the Nation"); Vitarelli v. Seaton, 253 F.2d 338, 342-343 (D.C. Cir. 1958), rev'd on other grounds, 359 U.S. 535 (1959). /9/ In sum, the Board here exhibited "a proper Board concern against treading into areas which are sensitive by virtue of their national security implications" (Pet. App. 52a). National security matters, as this Court has recognized, are "the province and responsibility of the executive." Haig v. Agee, 453 U.S. 280, 293-294, 304 (1981). "As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities." United States v. Nixon, 418 U.S. 683, 710 (1974). Absent an unambiguous grant of jurisdiction by Congress, courts have traditionally been reluctant to intrude upon the authority of the executive in military and national security affairs. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Burns v. Wilson, 346 U.S. 137, 142, 144 (1953); Gilligan v. Morgan, 413 U.S. 1, 10 (1973); Schlesinger v. Councilman, 420 U.S. 738, 757-758 (1975); Chappell v. Wallace, 462 U.S. 296 (1983). /10/ The court of appeals' contrary holding -- that although there is no evidence in the text of the CSRA there is a "strong presumption" in favor of MSPB review of security clearance determinations -- puts the matter backwards. In matters relating to national security, review by an outside body is not authorized absent a clear statement of congressional intent to do so: "Having never specifically granted MSPB jurisdiction to conduct hearings on security clearances, Congress has not signaled an intent that MSPB should use the jurisdiction it was granted as authority to inject itself into that sensitive area committed to the Executive branch." Pet. App. 34a (Markey, J., dissenting). The evidence in this instance, which we review below, in fact shows the congressional intent was quite the contrary. B. The Text And History of the Civil Service Reform Act, The "Nature Of The Administrative Action Involved" In Security Clearance Determinations, And The Nature Of The Statutory Procedures For Review Of Adverse Actions Demonstrate That Congress Could Not Have Intended To Subject Clearance Determinations to MSPB Review The issue in this case is one of statutory construction and "at bottom * * * turns on congressional intent" (Clarke v. Securities Industry Ass'n, No. 85-971 (Jan. 14, 1987), slip op. 11). "(A)ll indicators helpful in discerning that intent must be weighed" (ibid.), including the "express language (of the statute,) the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved" (Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984)). All indicators in this case demonstrate that Congress could not have intended to subject security clearance determinations to MSPB review. 1. The CSRA Does Not By Its Terms Provide For MSPB Review of Security Clearance Determinations A security clearance determination by an executive agency is conducted in accordance with Executive Order No. 10,450 and the regulations of the agency in question. The Department of Defense, for example, has mandated procedures for all the military branches and administrative agencies within the department. DOD Regulation 5200.2-R, para. 8-201 (Jan. 1987). DOD civilian, military and contractor personnel facing denial or revocation of a clearance are entitled, at a minimum, to written notice and a statement of reasons (to the extent permitted by national security); an opportunity to respond in writing; a written answer to the employee's submission stating the final reasons for the adverse determination; and an opportunity to appeal to a higher authority within the agency (ibid.; see also DOD Directive 5220.6 (Aug. 12, 1985)). Navy regulations guaranteed all these procedures at the time of respondent's security clearance determination. OPNAVINST 5510.1F, para. 16.105. /11/ See also Air Force Regulation 205-32, para. 8-20 (June 26, 1987); Army Regulation 604-5, para. 8-201f and App. C, Annex A, para. 15. Civilian agencies dealing with sensitive information have similarly comprehensive procedures. See, e.g., 10 C.F.R. 710.10(a) (Department of Energy); 10 C.F.R. Pt. 10 (Nuclear Regulatory Commission). /12/ The CSRA plainly does not confer general jurisdiction on the MSPB to review security clearance determinations. Under 5 U.S.C. 7513(d), the MSPB has jurisdiction to review "adverse actions," a term limited to removals, suspensions for more than 14 days, reductions in grade or pay, and furloughs of 30 days or less. 5 U.S.C. 7512. The denial or revocation of a security clearance is not an "adverse action," and in itself is clearly not subject to Board review. /13/ When one of the requirements of a government position is the maintenance of a security clearance, an employee whose required clearance is denied or revoked may be removed "for cause" under 5 U.S.C. 7513(a). Under that section the employee is entitled to "30 days' advance written notice * * * stating the specific reasons for the proposed action," an opportunity to respond and be represented by counsel, a "written decision and the specific reasons therefor," and an appeal to the MSPB. The MSPB may determine whether cause for removal existed: that is, it may determine whether the security clearance was in fact an agency requirement for the job, whether the clearance was in fact denied or revoked, and whether transfer to a nonsensitive position was feasible. Nothing in the CSRA directs or empowers the MSPB to go beyond reviewing whether cause for removal existed to examine the merits of the otherwise unreviewable underlying security clearance determination. We agree with the Board that it may examine whether the agency made such a determination, that is, whether the agency had procedures for denying or revoking clearances and whether the procedures were followed. The Board also could, in an appropriate case, find that a determination was not validly made because the employee was not afforded procedural protections guaranteed to him by the agency's regulations (such as notice, a statement of reasons for the proposed denial or revocation, and an opportunity to respond. But the merits of the security clearance determination, like the substance of many other agency decisions that may lead immediately or eventually to an employee's failure to qualify for a job, are not subject to MSPB review. The Board, affirmed by the Federal Circuit, has repeatedly ruled that it does not have jurisdiction to review the merits of agency personnel decisions (especially military decisions) that do not constitute "adverse actions" merely because a consequence of a decision is that an employee fails to meet the qualifications for his job and therefore becomes subject to removal. For example, in Zimmerman v. Department of the Army, 755 F.2d 156 (Fed. Cir. 1985), a civilian employee of the Army had challenged her removal resulting from her transfer out of her Army Reserve unit. The MSPB sustained the removal on the ground that after the transfer the employee no longer met the job specifications, but it declined to review the transfer on its merits. Affirming, the court of appeals said that the "Board does not have the jurisdiction to examine military assignments and transfers" (id. at 157). Similarly, in Buriani v. Department of the Air Force, 777 F.2d 674, 677 (Fed. Cir. 1985), the court held that the Board could not examine the reasons for an Air Force Reserve officer's failure to be promoted, even though the nonpromotion caused the individual to be disqualified for, and therefore to be demoted from, his Air Force civilian position. See also Tennessee v. Dunlap, 426 U.S. 312 (1976) (affirming discharge of a National Guard employee whose job was conditioned on enlistment in the National Guard, without review of the allegedly arbitrary refusal of the National Guard to reenlist the employee in order to circumvent civil service protections). The Board has also refused to reconsider other discrete proceedings, such as criminal convictions and bar decertifications, that underlie agency adverse actions. See, e.g., Crofoot v. United States Gov't Printing Office, 21 M.S.P.R. 248, 252 (1984), rev'd on other grounds, 761 F.2d 661 (Fed. Cir. 1985); McGean v. NLRB, 15 M.S.P.R. 49, 53 (1983). See also Bacon v. HUD, 757 F.2d 265, 269-270 (Fed. Cir. 1985) (no MSPB authority to probe reasons behind reduction-in-force); Madsen v. Veterans Admin., 754 F.2d 343 (Fed. Cir. 195) (in reduction-in-force related adverse action, no MSPB authority to review merits of agency's prior classification of bumping employee or his qualifications). As the Board said in the instant case, review of the underlying action was inappropriate in those cases because it was "committed to appropriate procedures within the respective entities and, additionally, involve(d) determinations wherein the Board lacks a specific grant of jurisdiction" (Pet. App. 52a). In the present case, respondent received all appropriate procedures within the Navy prior to the denial of his security clearance. He was given notice of the proposed denial, an opportunity to respond, and a written decision stating the reasons for the denial. Respondent also pursued an appeal to the Personnel Security Appeals Board. See pp. 3-4, supra. Because respondent did not qualify for a sensitive position and no nonsensitive positions were available at the Trident Refit Facility, respondent was removed. Upon his removal, respondent was entitled to MSPB review under Section 7513, including a determination that a security clearance was required for his position, that a security clearance was denied in accordance with agency procedures, and that reassignment was not an available alternative. But Section 7513 does not by its terms authorize the MSPB to reassess the merits of the determination to deny a clearance. As Judge Markey noted in his dissenting opinion below (Pet. App. 33a), "(t)he majority's facile leap from the board's general jurisdiction to review removals to the notion that the exercise of that jurisdiction must include authority to review the reasonableness of security judgments, is unnecessary and unwarranted." 2. The History Of The CSRA Demonstrates That Congress Did Not Intend To Give The MSPB Jurisdiction To Review The Merits Of Security Clearance Determinations Prior to the adoption of the CSRA, most federal employees dismissed for cause could pursue an appeal to the Civil Service Commission. We know of no occasion on which the Civil Service Commission, in examining the cause for a dismissal, exercised jurisdiction over security clearance determinations. Nor was there any other form of outside substantive review of security clearance decisions for government employees prior to adoption of the CSRA. The legislative history of the CSRA clearly demonstrates that Congress did not intend to grant the MSPB broader jurisdiction than the Civil Service Commission in this respect. Congress created the Merit Systems Protection Board to take over the adjudicatory functions of the Civil Service Commission; with certain specifically enumerated exceptions, those functions passed from the Civil Service Commission to the MSPB unchanged. No exception was made to permit review of security clearance determinations. Prior to the adoption of the CSRA, competitive service employees had the right, under Section 6 of the Lloyd-LaFollette Act, ch. 389, 37 Stat. 555 (codified as amended at 5 U.S.C. (1964 ed.) 652) to be dismissed only for cause. Such employees also had a right, but only by Executive Order, to appeal a dismissal to the Civil Service Commission. Exec. Order No. 10,988, 3 C.F.R. 521 (1959-1963 Comp.); Exec. Order No. 11,491, 3 C.F.R. 191 (1969 Comp.). Preference-eligible veterans had by statute both the right to be discharged only "for such cause as will promote the efficiency of the service" and the right "to appeal to the Civil Service Commission." Veterans' Preference Act of 1944, ch. 287, Section 14, 58 Stat. 390 (codified as amended at 5 U.S.C. (1964 ed.) 863). We have found no instance in which the Commission, in the course of reviewing the "cause" for a removal, under took to review the merits of a security clearance determination, even where denial of a clearance was the cause for the removal. /14/ Indeed, by 1978, when the CSRA was adopted, there had never to our knowledge been any case in which a denial of a security clearance to a government employee had been reviewed on the merits by any outside body. It was well established that an agency's decision to deny such a security clearance was not subject to outside substantive review. As the D.C. Circuit had put the matter, "in the case of a Government employee the courts will not inquire into the merits of a dismissal (for want of a security clearance): they will inquire whether required procedures have been observed, or an applicable statute violated, but they will not -- for example -- attempt to determine whether an employee is or is not a "security risk," or is "untrustworthy." Greene v. McElroy, 254 F.2d at 953 (citations omitted); see Vitarelli v. Seaton, 253 F.2d at 342-343; see also, e.g., Cafeteria Workers v. McElroy, supra (Navy may summarily exclude from its base a civilian concessionaire worker failing to meet security requirements); United States v. Marchetti, 466 F.2d at 1318 (declining to review secrecy classifications.) /15/ In Cole v. Young, supra, this Court had occasion to consider the jurisdiction of the Civil Service Commission under the Veterans' Preference Act. The Court expressly noted in that case that doubts as to the loyalty of an employee could constitute "cause" for dismissal under that Act (351 U.S. at 543). The Court further suggested in dictum, however, that when a sensitive position is in question the agency head's determination of who should be granted access to classified information should not be subject to outside, substantive review (id. at 546 (emphasis added)): (T)here is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information. The CSRA replaced the Civil Service Commission with two new agencies. The Office of Personnel Management assumed the Commission's personnel management and agency advisory functions, and the MSPB was given the function of adjudicating employee appeals and ensuring compliance with the CSRA. See S. Rep. 95-969, 95th Cong., 2d Sess. 1, 3, 5, 24, 28 (1978). /16/ But the CSRA did not effect any general enlargement of employees' rights to obtain review of adverse actions. To the contrary, the legislative history of the CSRA explicitly states that, with certain specifically enumerated exceptions, the new statute merely unified and codified existing appeal rights (id. at 48): Subsection (a) (of Section 7511 of title 5, United States Code) provides a statutory basis for the procedural protections and appeal rights now granted employees in the competitive service * * * . Protections against arbitrary or capricious actions have become established by practice and Executive Order -- but not by statute -- as a basic right of competitive service employees. * * * Subparagraph (1)(B) of subsection (a) reaffirms procedural protections and appeal rights of preference eligibles (i.e., veterans) in the excepted service. See also Civil Service Reform: Hearings Before the House Comm. on Post Office and Civil Service, 95th Cong., 2d Sess. 13 (1978) (remarks of Alan K. Campbell, Chairman, U.S. Civil Service Commission) ("the right to appeal from adverse actions remains not substantially changed from the current system"). When the Senate and House committees listed the major changes wrought by the CSRA, they gave no indication that agency security clearance determinations were now to be subject to review. See S. Rep. 95-969, supra, at 46, 52; H.R. Rep. 95-1403, 95th Cong., 2d Sess. 21-22 (1978). With respect to adverse actions, the House Committee on Post Office and Civil Service explained that it recommended and made only two major changes to the appeal rights of federal employees as they existed prior to the CSRA. First, it eliminated "reduction in rank" from the definition of adverse action, /17/ and, second, it included suspensions of more than 14 days in that definition. H.R. Rep. 95-1403, supra, at 22. /18/ Aside from these changes, the legislative history indicates that Congress intended simply to codify, and transfer to the jurisdiction of the MSPB, the appeal rights federal employees already had. No new right to substantive review of security clearance determinations is mentioned. There is no suggestion that the MSPB is to conduct substantive review of matters that were beyond the reach of its predecessor. 3. The "Nature of the Administrative Action Involved" Further Indicates That Congress Did Not Intend The MSPB To Review Security Clearance Determinations The grant of a security clearance is inherently discretionary. It requires an affirmative determination that the recipient's access to confidential information would be "clearly consistent with the interests of the national security." That prediction "involve(s) a complicated balancing of a number of factors which are peculiarly within (the agency's) expertise" (Heckler v. Chaney, 470 U.S. 821, 831 (1985)). It requires not only an assessment of the character, circumstances and past conduct of the applicant, but also a judgment as to what constitutes an acceptable margin of error in light of the sensitivity of the information in question. See Exec. Order No. 10,450, Section 3, 3 C.F.R. 937 (1949-1953 Comp.). It must ultimately be based on the subjective judgment of those expert in national security matters generally and in the particular security problems the agency faces. This calculus will vary depending, inter alia, upon the agency's mission, the particular project in question, and the degree of harm that would be caused if the project is compromised. /19/ No outside, nonexpert body can effectively review such determinations, because there is, at bottom, no law to apply. Congress has not provided any standards by which the MSPB could evaluate the policy judgments of the Executive Branch agencies charged with safeguarding the national security. See Greene v. McElroy, 254 F.2d at 953: (F)or a court to hear de novo the evidence as to Greene's fitness to be assigned to a particular kind of confidential work would be a bootless task, involving judgments remote from the experience and competence of the judiciary. Indeed, any meaningful judgment in such matters must rest on considerations of policy, and decisions as to comparative risks, appropriate only to the executive branch of the Government. See also Adams v. Laird, 420 F.2d at 239. The decision whether to grant a security clearance is one committed by "practical necessit(y)" -- and by Congress's decision not to provide "judicially discoverable and manageable standards for resolving it" (Baker v. Carr, 369 U.S. 186, 217 (1962)) -- to agency discretion. Cf. CIA v. Sims, 471 U.S. at 169. As Judge Markey stated below (Pet. App. 32a (emphasis in original)): "There is no fact dispute and no law to apply to the Navy's judgment. All that remains is the possible substitution of MSPB's judgment." This Court stressed in Heckler v. Chaney, 470 U.S. at 830, that "review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." That stricture applies with redoubled force here. The MSPB, as it itself recognized, has not been given the standards -- because Congress plainly did not intend it to have the authority -- to review security clearance determinations of Executive Branch agencies. 4. The Standard Of Review Chosen By Congress For MSPB Review Of Adverse Personnel Actions Could Not Have Been Intended To Apply To Security Clearance Determinations The standard for MSPB review of removals, prescribed in 5 U.S.C. 7701(1)(1)(B), is so obviously inappropriate for review of the merits of security clearance determinations that Congress cannot have intended to require review under that section. Section 7701 (c)(1)(B) provides that the agency's decision shall be sustained only if it is "supported by a preponderance of the evidence." However, as Congress was well aware when it enacted that section, a security clearance may only be granted if it is "clearly consistent with the interests of national security." Exec. Order No. 10,450, Sections 2, 7, 3 C.F.R. 936, 938 (1949-1953 Comp.). The agency must make an affirmative determination, and all doubts are to be resolved against granting the clearance and in favor of protecting the national security. It simply makes no sense to ask whether the failure to grant a security clearance is supported by a preponderance of the evidence. In enacting the CSRA, Congress clearly recognized that different standards of review are appropriate to different sorts of agency determinations. For example, Congress provided for review of performance-based dismissals under the substantial evidence standard (see 5 U.S.C. 7701(c)(1)(A)). The rationale for the different standard is expressly stated in the legislative history. Congress required a "lower standard of proof * * * because of the difficulty of proving that an employee's performance is unacceptable." S. Conf. Rep. 95-1272, 95th Cong., 2d Sess. 139 (1978). /20/ Congress's recognition of the need to adopt a lower standard of proof because of the inherent difficulty of proving unacceptable performance makes it all the more unlikely that Congress intended security clearance determinations to be subject to the higher, preponderance-of-the-evidence standard. As discussed above, the decision to grant or deny a security clearance implicates numerous factors that do not lend themselves to quantitative evaluations. The "correctness" of such a determination will be proved or disproved by future events. As Judge Markey asked in his dissent (Pet. App. 41a (emphasis in original)): "What objective facts can those responsible officials correctly cite to 'prove by a preponderance of the evidence' that this or that employee will reveal defense secrets?". Yet, if security clearance determinations are reviewable at all, "preponderance" is clearly the prescribed standard under the CSRA. See 5 U.S.C. 7701 (c)(1)(B). The court of appeals attempted to avoid the implications of its holding that security clearances are subject to Board review by asserting that, as an appellate authority, the Board could not substitute its judgment for that of the agency (Pet. App. 24a). But in seeking thus to give some measure of reassurance about what it was deciding, the court simply ignored the statute it was purporting to interpret. The CSRA clearly requires that MSPB review of agency adverse actions under Section 7701 involve a full evidentiary hearing and de novo review of both factual and legal questions, and the agency must prove the propriety of its action by a preponderance of the evidence before the MSPB. See 5 U.S.C. 7701(a), (c)(1)(B) and (2); Douglas v. Veterans Administration, 5 M.S.P.B. 313, 316-317 (1981). The fact that this procedure is obviously unsuited to review of the merits of security clearance determinations proves not that the courts should redesign that procedure but that Congress did not intend to subject security clearance determinations to Board review. The decision of the presiding official in this case is illustrative of the consequences of the court of appeals' ruling. The factual allegations on which the denial of respondent's security clearance was based were not disputed. They were, in any event, documented in law enforcement and judicial records. /21/ Nevertheless, the presiding official ruled, in essence, that the Navy had not satisfied her, by a preponderance of the evidence, that the determination that those undisputed facts warranted denial of a security clearance was "reasonable" (Pet. App. 64a-66a). In other words, she substituted her judgment of the requirements of national security for that of the Navy. Such an approach to the question would only be appropriate if the CSRA had, without expressly saying so, changed both the standard for granting security clearances and the identity of the decisionmaker. /22/ One further consequence -- a reductio ab absurdum -- of the court of appeals' decision in this case should be noted. Federal employees are entitled by law to form unions and bargain with respect to "conditions of employment." 5 U.S.C. 7102. Any collective bargaining agreement that results from those negotiations must include a grievance process, with binding arbitration for grievances not satisfactorily settled through negotiations. 5 U.S.C. 7121(a)(1). The procedures so specified are to be the exclusive procedures for resolving grievances which fall within the coverage of the agreement. One among several exceptions, however, is for adverse personnel actions taken under the CSRA. In the case of such actions, the employee has the option of proceeding either by way of an appeal to the MSPB, as provided in 5 U.S.C. 7701, or under the negotiated grievance procedure, but not both. 5 U.S.C. 7121(e)(1). If the employee elects the latter option, then the arbitrator has the same jurisdiction to review the adverse personnel action, and applies the same standard of review, as does the MSPB. 5 U.S.C. 7121(e)(2). Congress cannot have intended to submit the question of whether or not to grant a security clearance to binding arbitration. Yet just that absurdity follows directly if the MSPB has authority to review a clearance denial in the course of reviewing an adverse personnel action based in whole or in part on that denial. Indeed, at least one arbitrator has already so held. Relying on the decision below, an arbitrator reviewing a removal based upon the revocation of a security clearance held that "the merits of the security revocation are subject to arbitral review in this proceeding. Moreover, like other adverse actions, the Employer must establish by a preponderance of the evidence that the incidents relied upon in the revocation actually occurred. It also appears that the same burden of proof is applicable to a finding that there was a nexus between the cited incidents and national security interests." In re a Controversy between Mare Island Naval Shipyard and Federal Employees Metal Trades Council Involving the Removal of Edwin Bonwell 21 (May 18, 1987). Concluding that the Navy had failed to meet this burden, the arbitrator then ruled that since the clearance was not properly revoked, it remains in effect and the employee is entitled to reinstatement with full seniority. Id. at 29. 5. The Process Of MSPB Review Of Security Clearance Determinations Would Itself Threaten National Security A final aspect of MSPB review that makes it clear that Congress could not have intended the MSPB to review the merits of security clearance determinations is that, as the Board noted (Pet. App. 52a-53a), the MSPB review procedss would itself threaten the disclosure of classified information. Even where litigation protections for particular information could be devised, albeit at a cost to adversarial proceedings (see, e.g., Molerio v. FBI, 749 F.2d 815 (D.C. Cir. 1984) (state secrets privilege)), there would remain a considerable risk that the integrity of personnel security programs would be compromised. When an agency must explain, in case after case, how or why certain factors compelled the revocation or denial of a security clearance, it inevitably will be painting a clear picture to hostile entities of the kinds of conduct that are of concern in security determinations, and thus will increase their ability to penetrate our military and intelligence agencies undetected. Cf. CIA v. Sims, 471 U.S. at 179 ("It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency."); Doe v. Casey, 796 F.2d 1508, 1532 (D.C. Cir. 1986) (Buckley, J., dissenting) ("To intrude, however deferentially, into the (CIA's) most sensitive personnel decisions entails the inevitable risk of unwittingly compromising national intelligence operations through the forced disclosure of information whose possible significance a court is not capable of assessing."), cert. granted sub nom. Gates v. Doe, No. 86-1294 (June 8, 1987). As this Court long ago noted and recently reaffirmed, "'public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential and respecting which it will not allow the confidence to be violated." Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 146-147 (1981) (quoting Totten v. United States, 92 U.S. at 107). See also United States v. Reynolds, 345 U.S. 1, 6-8 (1953) (discussing origins of the military or state secrets privilege). This basic principle alone provides sufficient indication that Congress did not intend, sub silentio, to expose security clearance determinations to de novo review by the MSPB. Viewed in conjunction with the other considerations noted above, the proof is overwhelming. The highly discretionary and judgmental nature of the administrative action involved, the need for special expertise in national security risk assessments, the settled history of nonreview of such decisions, the inappropriateness of the prescribed standard of review, and the attendant risks of compromise in subjecting such determinations to outside review -- all these factors compel the conclusion that Congress did not intend the MSPB to review security clearance denials or revocations. Indeed, a congressional subcommittee has itself recently so indicated. In the wake of revelations of espionage by government employees and former employees, the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs held hearings and issued a detailed report on government personnel security programs. S. Rep. 99-230, 99th Cong., 2d Sess. (1986). The Senate Subcommittee specifically disapproved of the recent judicially-imposed move towards outside, nonexpert review of security clearance determinations. In fact, one of the recommendations the Subcommittee made for improving the effectiveness of personnel security programs was that "Congress should consider the need for legislation clearly specifying that the Merit Systems Protection Board is authorized to review employment, as opposed to security, decisions. The Board, whose expertise does not encompass questions of national security, should not be engaged in the denial or reinstatement of security clearances." Id. at 20 (recommendation #13). /23/ C. The Availability Of Summary Removal Under 5 U.S.C. 7532 Provides No Support For MSPB Review Of Security Clearance Determinations Under Sections 7512 and 7513 Section 7532 provides that "the head of an agency" may summarily suspend an employee without pay when he considers such action "necessary in the interests of national security" and may remove a suspended employee when, after following specified procedure, he determines that removal is "necessary or advisable in the interests of national security." 5 U.S.C. 7532(a) and (b). /24/ A removal under Section 7532 is not reviewable by the MSPB. See 5 U.S.C. 7532(b); 5 U.S.C. 7512(A). The court of appeals correctly recognized (Pet. App. 12a) that Section 7532 is not the exclusive authority for removals involving national security considerations and that an agency may remove an employee for cause, for failure to hold a required security clearance, without invoking Section 7532. The court of appeals said (Pet. App. 18a), however, that the availability of Section 7532 procedures is a "compelling" argument in favor of MSPB review of a security clearance denial in a removal case where Section 7532 is not invoked. That is a non sequitur. Congress enacted the predecessor of Section 7532 (the Act of Aug. 26, 1950, ch. 803, Section 1, 64 Stat. 476) to give the heads of certain executive agencies the power to take immediate action when necessary to protect the national security. See e.g., S. Rep. 2158, 81st Cong., 2d Sess. 2 (1950). See also H.R. Rep. 2264, 80th Cong., 2d Sess. 1 (1948). From the standpoint of both the affected employee and the agency head, it is a drastic remedy. The employee may be suspended summarily, without process and without pay, and may be removed "after such investigation and review as (the agency head) considers necessary." (Permanent employees are entitled, "after suspension and before removal," to notice of charges, an opportunity to respond, and a hearing "by an agency authority duly constituted for this purpose.") Neither the suspension nor the removal is subject to any outside review. An employee removed under Section 7532 is not eligible for any position in the agency and may not be appointed to any position elsewhere in the government without consultation with OPM, which may make a written determination of his eligibility. 5 U.S.C. 7312. On the other hand, from the standpoint of the head of the agency, Section 7532 requires him to act personally and it requires affirmative findings that suspension is "necessary" and then that removal is "necessary or advisable" in the interests of national security. Section 7532 was not intended to be used routinely, but only when there is an immediate and apparent risk to national security. See H.R. Rep. 2330, 81st Cong., 2d Sess. 3 (1950). See also Cole v. Young, 351 U.S. at 546. The proponents of the statute gave assurances kthat it would be used sparingly and cautiously. See, e.g., Hearings on S. 1561 Before a Subcomm. of the Sen. Comm. on Armed Services, 80th Cong., 1st Sess. 2, 3 (1948) (Statement of Mark Edwin Andrews, Assistant Secretary of the Navy): "It is our intention to utilize the provisions of this law only in the exceptional cases where no other speedy and sure method is available to protect the national security. * * * I wish to reemphasize that the Navy does not intend to use this summary-dismissal legislation * * * except in the most unusual cases." The court of appeals concluded (Pet. App. 19a) that respondent would have received more procedural protections under Section 7532 than he received in this case. That conclusion was wrong. In this case, under applicable Navy regulations, respondent received notice of the reasons for the proposed denial, an opportunity to inspect all relevant evidence and to respond to the charges, a written decision, and an opportunity to appeal to the Personnel Security Appeals Board. During this process respondent was retained on full pay status. His removal was subject to MSPB review that provides important protections: it affords the employee an outside check on whether the agency complied with applicable procedures (here including notice, a statement of reasons for the denial, and an opportunity to respond); the MSPB may also consider whether the employee is entitled to reassignment to a nonsensitive position in the same facility or agency. By contrast, if he had been removed under Section 7532, respondent would have received notice "(t)o the extent that the head of the agency determines that the interests of national security permit," a hearing before an agency board, and a decision by the head of the agency. He would have been suspended without pay pending the outcome. He would not have been entitled to any MSPB review at all, and once removed, respondent would have been barred from all employment with the agency. Section 7532 plainly is not a substitute for the orderly process of determining whether it is "clearly consistent with the interests of national security" to grant a particular employee a security clearance, and the availability of Section 7532 has no logical bearing on whether security clearance determinations should be reviewable on their merits. As noted, Section 7532 is a drastic measure both for the agency head, who must act personally and affirmatively, and for the employee, who must be suspended without pay and receives no review of his removal. The burdens are appropriately different: removal under Section 7532 requires an affirmative finding that removal is "necessary," while the granting of a security clearance requires an affirmative finding under the "clearly consistent" standard. Section 7532 is in fact not concerned with security clearances at all: it may be used to remove an employee who does not hold a clearance, or to remove an employee who does hold a clearance without revoking that clearance, but it may not be used routinely in every case where agency officials are unable to make the affirmative judgment necessary to grant an individual a security clearance. The court of appeals, although recognizing that an employee denied a required security clearance may be removed for cause without invocation of Section 7532, /25/ evidently assumed that Section 7532 could be invoked in any case in which the agency wishes to shield its security considerations from outside review on the merits. But that is the wrong answer to the wrong question. Section 7532 is plainly not appropriate in the vast majority of cases where it is appropriate not to grant a security clearance, and in any event the proper question is not whether the agency has any other recourse in an emergency, but whether Congress intended the MSPB, sitting to review a removal under Section 7513, to review the merits of an underlying security clearance determination. To the extent that Section 7532 has any bearing on that question, it reflects a congressional awareness that determinations based on national security considerations are not appropriate for outside review. /26/ CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LOUIS R. COHEN Deputy Solicitor General MICHAEL K. KELLOGG Assistant to the Solicitor General BARBARA L. HERWIG FREDDI LIPSTEIN Attorneys AUGUST 1987 /1/ "C.A. App." cites are to the appendix to the government's brief in the court of appeals. /2/ See Chief of Naval Operations Instructions (OPNAVINST) 5510.1F (June 15, 1981) (reprinted in C.A. App. 26-34) implementing DOD Regulation 5200.2R (Dec. 1979). See also NCPC Instruction 5521.1, pertinent only to civilian personnel. OPNAVINST 5510.1F was amended on April 20, 1984, and is now OPNAVINST 5510.1G. Unless otherwise specified, all references are to the Navy Regulations in force at the time respondent was denied a security clearance. /3/ This appeal and the PSAB response are in the administrative record but were not included in the court of appeals appendix. /4/ Under 5 U.S.C. 7532, "the head of an agency" may suspend an employee "when he considers that action necessary in the interests of national security" and, after specified procedures, may remove a suspended employee when "he determines that removal is necessary or advisable in the interests of national security." Removals under Section 7532 are not subject to MSPB review (see 5 U.S.C. 7512(A)). However, the Navy did not invoke Section 7532 in this case; accordingly, the removal action was subject to MSPB review as provided in 5 U.S.C. 7513. /5/ In Hoska v. Department of the Army, 677 F.2d 131 (D.C. Cir. 1982), a civilian employee of the Army was terminated for failure to maintain a security clearance necessary for his position. The MSPB affirmed the termination. The District of Columbia Circuit (which had jurisdiction to review the MSPB decision because the matter arose prior to the Federal Courts Improvement Act of 1982, 28 U.S.C. 1295 (a)(9)), reversed on the ground that revocation of the security clearance was unjustified. The court purported to require only that there be "some rational nexus between the adverse action taken and the government's articulated reasons for the action" (677 F.2d at 137 (emphasis added)). In fact, however, the court was in some instances clearly second-guessing the security clearance determination. See, e.g., 677 F.2d at 143, 144 (footnote omitted) ("(e)ven if an incident such as this one could rationally be viewed as involving 'immoral or notoriously disgraceful conduct,' it is not clear from the Army's evidence that it is of a serious enough degree -- an inquiry mandated by the Army regulation -- to justify revocation of petitioner's security clearance"); see also id. at 144 n.21. The MSPB in this case declined to follow Hoska on the ground that while the court there reviewed the merits of a security clearance revocation, it did not discuss the authority of the Board to do so (Pet. App. 49a). Furthermore, the MSPB noted, in light of the Federal Courts Improvement Act Hoska "is persuasive authority only and not precedential for Board decisions" (id. at 49a n.4). Several MSPB presiding officials nonetheless relied on Hoska in holding that they have authority to second-guess security clearance determinations and to order clearances restored. See Skees v. Department of the Navy, No. PH07528410257 (M.S.P.B. June 14, 1984), slip op. 13; Peterson v. Department of the Navy, No. BN07528410010 (M.S.P.B. Feb. 14, 1984), slip op. 8; Irving v. Department of the Navy, No. BN07528410005 (M.S.P.B. Feb. 3, 1984), slip op. 9. It was such decisions generated by Hoska that led the Board to examine the scope of its review authority in this case. /6/ In light of its determination of the appropriate extent of review, the Board concluded that it would not in any event have authority to order an agency to restore a security clearance (Pet. App. 55a). Where an agency failed to provide proper procedures, the Board's remedy would be to order the employee restored to pay status and remand to the agency to remedy the procedural defects (id. at 56a-58a). The Board also concluded that 5 U.S.C. 7532 is not the exclusive statutory authority for removals based upon national security concerns (Pet. App. 55a-56a). /7/ Congress has recognized the validity of these executive actions. For example, the Act of Jan. 12, 1938, ch. 2, Section 1, 52 Stat. 3 (codified as amended at 18 U.S.C. 795(a)), made it a crime to make any photograph, sketch, or representation of any military or naval installations or equipment designated as sensitive by the President. See also 50 U.S.C. 783(b) (unlawful for government employee to communicate classified information to agent of foreign government without authorization). And Congress explicitly exempted from the disclosure requirements of the Freedom of Information Act information authorized "by an Executive order to be kept secret in the interest of the national defense or foreign policy." 5 U.S.C. 552(b)(1)(A). See also 5 U.S.C. 552b(c)(1) (exception from Sunshine Act for meetings involving classified information); 5 U.S.C. 2302(b)(8)(A) (exception to whistleblower protection for employees who disclose classified information). /8/ In Cole, the Court ruled that the Act of August 26, 1950, as extended to other departments and agencies by Executive Order No. 10,450, did not authorize the dismissal of an employee from a nonsensitive position (351 U.S. at 536). In the present case, there is no doubt that the position in question is a sensitive one. This case does not present the question whether it is ever appropriate for the MSPB to review an agency's determination that a position is a sensitive one. /9/ The reversal in Greene was based on the absence of presidential or congressional authorization for the procedure leading to the dismissal. The reversal in Vitarelli was based on procedural flaws in the dismissal. This Court did not contradict the court of appeals' statements in those cases that the merits of security clearance determinations are unreviewable. /10/ The authority of the Executive Branch is perhaps at its apogee with respect to controlling access to military installations. See Cafeteria Workers v. McElroy, 367 U.S. at 890, 892. In its capacity as "proprietor, to manage the internal operation of an important federal military establishment," this Court has stressed that "the Federal Government * * * has traditionally exercised unfettered control." Id. at 896. /11/ The Navy's Personnel Security Appeals Board was created on July 20, 1983, in time for respondent to pursue his appeal to that Board, which affirmed the denial of his clearance on September 1, 1983. On April 20, 1984, even more comprehensive adjudicatory guidelines were incorporated into a revised Naval Instruction, OPNAVINST 5510.1G, Chapter 22 and exhibits to Chapter 22. The Personnel Security Appeals Board was at that time incorporated in para. 22-3. Exhibit 22B explains the Board's composition, purpose and procedures. /12/ Internal Navy procedures often result in reversal or modification of an initial determination to deny or revoke a clearance. During the period January 1, 1982 through June 30, 1987, the Navy issued a total of 493 letters of intent to deny or revoke a security clearance. In 84 cases, after an employee responded to the letter of intent, the clearance was granted or continued in effect because the employee provided sufficient additional information. In 92 additional cases, initial decisions were reversed on the employee's timely appeal within the Navy and the clearance granted. In 53 instances, the employee was reassigned or transferred or decided to resign, thus eliminating the need for a final security determination. Memorandum from the Director, Department of the Navy Central Adjudication Facility to the Director, Office of Civilian Personnel Management (July 9, 1987). Since January 1, 1982, there have been 55 removal actions in the Navy based solely on the denial or revocation of a security clearance. Memorandum from the Director, Labor and Employee Relations Division to the Office of Counsel of the Office of Civilian Personnel Command (July 10, 1987). /13/ The denial or revocation of a security clearance need not, and quite commonly does not, lead to any "adverse action." In the ordinary case where the clearance proceeding is conducted before a government employee is placed in a sensitive position, an individual who is not cleared is simply turned down for the job in question. An individual who already occupies a sensitive position when a clearance is denied or revoked may be transferred to a nonsensitive position within the agency at the same grade and pay. In none of such cases is there any occasion for MSPB review. /14/ For a period of approximately six years, pursuant to Exec. Order No. 9,835 (March 21, 1947), 3 C.F.R. 627 (1943-1949 Comp.), the government had in place a Loyalty Program for all federal employees, under which each agency and department head was authorized to remove any officer or employee on grounds relating to loyalty. The decisions of the agency heads were reviewable on the merits by a specialized division of the Civil Service Commission called the Loyalty Review Board, but only "for an advisory recommendation." Exec. Order No. 9,835 Pt. II, para. 3. "The final decision rested with the Administrator." Kutcher v. Gray, 199 F.2d 783, 787 (D.C. Cir. 1952). Cf. Cole v. Young, 351 U.S. at 544 n.7. It bears emphasis that "loyalty" is quite a different matter than the constellation of considerations appropriately underlying the determination to grant a security clearance. See pp. 18-19, supra. Executive Order No. 9,835 was revoked by Executive Order No. 10,450, Section 12 (April 27, 1953). Section 11 of that Order called for the elimination of the Loyalty Review Board and expressly provided that after the effective date of the order, "the Loyalty Review Board * * * shall not accept agency findings for review, upon appeal or otherwise. /15/ In several cases involving employees of defense contractors, courts of appeals had suggested that there must be a "sufficiency of proof of a nexus between the conduct involved and security clearance." Gayer v. Schlesinger, 490 F.2d 740, 750 (D.C. Cir. 1973); see Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975); McKeand v. Laird, 490 F.2d 1262, 1264 (9th Cir. 1973) (finding "rational nexus"). However, the decisions, to the extent they were in favor of the employees, were based on failure to follow procedures promulgated by the Department of Defense pursuant to Exec. Order No. 10,865, 3 C.F.R. 398 (1959-1963 Comp.). Because the plaintiffs were employees of defense contractors, no question of statutory rights to civil service review was involved. The government concurred in the application of the Gayer "sufficient proof to support a rational nexus" standard in these cases. As we stated in our certiorari petition (at 12-13 n.9), we believe that this was error. The nature of security clearance determinations does not differ from government employment to private sector employment; the same standard -- "clearly consistent with the national interest" -- applies (Exec. Order No. 10,865, Section 2, 3 C.F.R. 399 (1959-1963 Comp.)) as do the same general and specific factors that must be weighed in the access determination (see, e.g., DOD Regulation 5220.22-R, para. 2-320 (Feb. 1984); Dep't of Energy, 10 C.F.R. 710.10). While we agree that an individual is, as a general matter, entitled to (and is afforded under Navy and other agency regulations) notice, a statement of reasons for the denial of a clearance, and an opportunity to respond, the "rational nexus" standard leads, as it led the D.C. Circuit in Hoska, see n.5, supra, to blatant second-guessing of an agency's determination that a constellation of facts makes it impossible to make the affirmative determination necessary to grant a security clearance. /16/ The two agencies had been created by Executive Order in anticipation of the CSRA. See Reorganization Plan No. 2 of 1978, reprinted in 7 U.S. Code Cong. & Admin. News 9801-9807 (1978). /17/ Reduction in rank "involves a change in an employee's relative position in his agency which does not involve a reduction in pay or grade" (H.R. Rep. 95-1403, supra, at 22). /18/ Under prior law, suspensions of less than 30 days were not considered adverse actions (H.R. Rep. 95-1403, supra, at 22). /19/ In many ways, the decision whether to grant a security clearance is like the decision whether the disclosure of certain information might compromise an intelligence source or method. Each such decision "will often require complex political, historical, and psychological judgments." CIA v. Sims, 471 U.S. at 176. The weighing of these factors requires the decision-makers to "be familiar with 'the whole picture * * * .'" Id. at 179 (citation omitted). As this Court has observed, "(w)hat may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context." Id. at 178 (citations and original quotation marks omitted). See also Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980) (random bits of information "may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself"). Just as "courts are * * * ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classification in that area," United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert. denied, 409 U.S. 1063 (1972), so too both courts and the MSPB are ill-equipped to review the determinations of who may have access to such classified information. /20/ The Committee explained further that "(t)he substantial evidence standard was adopted both because it is clearly a lower standard than now used in performance cases and because it is a generally understood term in administrative law." S. Conf. Rep. 95-1272, 95th Cong., 2d Sess. 139 (1978). /21/ "Egan does not challenge any fact in the listing of his 14 years of arrests and criminal acts and alcoholism -- he simply disagrees with the Navy's evaluation, its judgment, made in light of those facts." Pet. App. 26a (Markey, J., dissenting) (emphasis in original). /22/ Any substantive review of security clearance determinations is bound to involve such second-guessing, regardless of the standard of review. It is clear, for example, that the D.C. Circuit second-guessed an Executive Branch security clearance determination while purporting to apply a "rational nexus" standard in Hoska v. Department of the Army, 677 F.2d at 145 (ordering reissuance of clearance because Army failed "to show some specific connection" between "its evidence of (Hoska's) improper or indiscreet conduct" and his "ability to safeguard the information to which the security clearance gave him access"). And for the period just prior to the Board's decision in this case, presiding officials of the Board obviously believed that they had authority to substitute their judgment in security clearance matters for that of the agency, even to the point of ordering agencies to grant or reinstate clearances previously revoked or denied. See Skees v. Department of the Navy, No. PH07528410257 (June 14, 1984), slip op. 13; Peterson v. Department of the Navy, No. BN07528410010 (Feb. 14, 1984), slip op. 8; Irving v. Department of the Navy, No. BN07528410005 (Feb. 3, 1984), slip op. 9. /23/ This recommendation was based on testimony by the Department of Defense raising concerns that, after Hoska, its clearance decisions would regularly be second-guessed by the Board. S. Rep. 99-230, supra, at 16-17; Federal Government Security Clearance Programs, Hearings Before the Permanent Subcomm. on Investigations of the Sen. Comm. on Governmental Affairs, 99th Cong., 1st Sess. 718-725 (1985). /24/ The Senate Committee stated that Congress intended that the removal decision be made by the head of the agency personally, although the initial suspension, hearing and review may be delegated to officials within the agency. See S. Rep. 2158, 81st Cong., 2d Sess. 3 (1950). The Department of the Navy's regulations, consistent with that intent, provide that the Secretary of the Navy must personally make the determination to remove an employee under 5 U.S.C. 7532. See OPNAVINST 5510.1G, para. 22-6(2). /25/ In Doe v. Weinberger, No. 86-5395 (June 9, 1987), petition for reh'g pending, the D.C. Circuit held that the National Security Agency could not dismiss an employee "for cause" for failure to maintain a security clearance, but must either invoke (and follow the procedures specified in) Section 7532 or invoke a different summary procedure statutorily provided for NSA. That holding, if applicable to the Navy's power to dismiss employees for cause under Section 7513, would conflict with the Federal Circuit's ruling in this case that the Navy could proceed under Section 7513, and would pretermit the question presented to this Court for review. Doe cannot be correct. First, Section 7513 plainly empowers an agency to dismiss an employee who fails to meet a valid qualification for his job, and it is undisputed that a security clearance is a valid qualification for certain positions, including all positions at the Refit Facility; Section 7532 was designed to give agency heads the power to act swiftly in exigent circumstances, and nothing in its language or history suggests any intention to reduce or qualify an agency's statutory authority to dismiss for cause. Second, for reasons explained in the text, neither the agencies nor their employees should want the drastic procedures authorized by Section 7532 to become the required or routine method of taking adverse action based on security concerns. Because Doe was employed at NSA, he had, like a nonveteran in the "excepted service," no right of appeal to the MSPB. See 50 U.S.C. 402 note. The D.C. Circuit may have been seeking to supplement what it deemed an inadequate set of remedies for excepted service and similarly situated employees. The question whether it is appropriate for a court to supplement the remedies expressly provided by Congress for excepted service employees is before the Court in United States v. Fausto, cert. granted, No. 86-595 (Jan. 12, 1987). /26/ In debating and rejecting the suggestion that there should be outside review of removals under the Act of August 26, 1950, Congress expressly noted the risk of compromising sensitive information in the process of defending an agency action before an "independent board" as well as the inappropriateness of such outside board's reviewing an agency's "judgment as to why an employee is a bad security risk." 96 Cong. Rec. 10017 (1950) (remarks of Rep. Murray); see also id. at 10021 (remarks of Rep. Cavalcante).